Austria becomes the 14th European country to allow same-sex second-parent adoption

01/08/2013

On 1 August 2013, the legislation allowing same-sex second-parent adoption in Austria will enter into force.

On 4 July, the Austrian Parliament passed an amendment to the civil code allowing the adoption for unmarried same-sex couples, only five months after the European Court of Human Rights’ (ECtHR) judgment condemning Austria for discrimination [1]. In August 2012, FIDH, jointly with ICJ, ILGA-EUROPE, BAAF, NELFA and ECSOL intervened as third parties in this case providing legal arguments against discrimination of same sex couples [2].

Austria [3] has thereby joined the 13 other European countries where second-parent adoption is possible, that is Belgium, Denmark, Finland, France, Germany, Iceland, the Netherlands, Norway, Slovenia, Spain, Sweden, Portugal and United Kingdom.

Austria was due to change its legislation following the 19 February 2013 judgement of the ECtHR in case X. and others v. Austria (application 19010/07). In this case, a woman wanted to adopt her partner’s child. The Austrian Supreme Court had decided that the adoption by a second parent for a same-sex couple was not possible, because article 182§2 of the Austrian Civil Code (regarding the adoption for unmarried couples) could not be interpreted as allowing a child to have two fathers or two mothers : “the legislative provisions were based, in line with the biological reality, on the presence of a couple made up of parents of opposite gender” [4].

The plaintiffs lodged a complaint against Austria on 24 April 2007 before the ECtHR, alleging that they had been discriminated against, based on their sexual orientation, as second-parent adoption, granted to unmarried different-sex couples, was legally impossible for same-sex couples.

FIDH, ICJ, ILGA-EUROPE, BAAF, NELFA and ECSOL, represented by Pr. Robert Wintemute, were allowed by the President of the Grand Chamber to provide written comments regarding the case law and the judicial reasoning in European and other democratic societies on the obligation not to discriminate against families composed of a same-sex couple and the children they are raising together.

On 19 February 2013, the Court decided that Austria violated Article 14 (prohibition of discrimination) in conjunction with Article 8 (the right to respect private and family life) of the European Convention on Human Rights. The Court concluded that “the Government has failed to adduce particularly weighty and convincing reasons to show that excluding second-parent adoption in a same-sex couple, while allowing that possibility in an unmarried different-sex couple, was necessary for the protection of the family in the traditional sense or for the protection of the interests of the child. The distinction is therefore incompatible with the Convention” [5] .

Karim Lahidji, FIDH President said: “We welcome the multiplication of national legislations recognising equality of rights for same-sex couples, including the rights related to family life. All Member States of the Council of Europe should take this ECtHR decision into account and put their respective legislation in line with this important jurisprudence, so to pave the way for effective equality for same-sex couples and families."

Evelyne Paradis, Executive Director of ILGA-Europe, said: “We warmly welcome Austria to the family of European countries recognising same-sex partners’ second adoption rights. This is a very important step towards full equality for same-sex families and their children. The right of a child to have legal links with her/his parents, regardless of their marital status, sexual orientation or gender identity, is paramount and these children should not be discriminated against because of their parents’ characteristics.

Luis Amorim, on behalf of the Board of NELFA, said: "NELFA brings together LGBT parents and parents-to-be from all over Europe. We know how important it is for our children to be protected under the law. Our children deserve the same level of legal and social protection of any other child, no matter their family configuration. This decision is one one more step in the right direction, to bring full equality for our families and our children. NELFA rejoices in this decision and looks forward to further progress in Austria."

Footnotes

[1] See joint press release, "European Court of Human Rights: ban on same-sex second-parent adoption is discriminatory", 19 February 2013: http://fidh.org/European-Court-of-Human-Rights-ban-12919

[2] See FIDH-ICJ-ILGA-Europe-BAAF-NELFA-ECSOL written comments, submitted to the ECtHR on 1 August 2012 in case X. and others v. Austria: http://fidh.org/FIDH-third-party-intervention-13029

[3] According to ILGA-Europe Rainbow Europe Index (May 2013), Austria came 15th among 49 European countries in terms of laws and policies affecting the human rights of LGBTI people.

[4] See the Austrian Supreme Court judgment of 27 September 2006: http://www.menschenrechte.ac.at/orig/06_6/OGH9Ob62_06t.pdf.

[5] ECtHR, X. and others v. Austria, Application n°19010/07, Grand Chamber, 19 February 2013, § 151.

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